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C.A. NO. 09-2350_________________________________________________________________________
IN THE UNITED STATES COURT OF APPEALSFOR THE THIRD CIRCUIT
_________________________________________________________________________
AARON C. BORING and CHRISTINE BORING, husband and wife,Appellants,
v.
GOOGLE, INC., a California corporation,Appellee.
_________________________________________________________________________
Appeal from Western District of Pennsylvania2:08-cv-00694
APPEAL FROM ORDER DATED FEBRUARY 17, 2009, DISMISSING PLAINTIFFS' AMENDED COMPLAINT, GRANTING DEFENDANT'S 12(B)(6) MOTION ON ALL COUNTS; APPEAL FROM ORDER DATED APRIL 6, 2009, DENYING PLAINTIFFS' MOTION FOR RECONSIDERATION_________________________________________________________________________
BRIEF OF APPELLANTSAARON AND CHRISTINE BORING
APPENDIX VOLUME I (A1-A20)_________________________________________________________________________
Gregg R. Zegarelli, Esq.PA I.D. #[email protected]
Dennis M. Moskal, Esq.PA I.D. #[email protected]
Z E G A R E L L ITechnology & Entrepreneurial Ventures Law Group, P.C.Allegheny Building, 12th FloorPittsburgh, PA 15219-1616v.412.765.0400f.412.765.0531
TABLE OF CONTENTS
TABLE OF CONTENTS......................................................iTABLE OF AUTHORITIES..................................................ii
STATEMENT OF SUBJECT MATTER AND APPELLATE JURISDICTION.................1STATEMENT OF THE ISSUES................................................2STATEMENT OF THE CASE..................................................4STATEMENT OF FACTS....................................................11STATEMENT OF RELATED CASES............................................10SUMMARY OF ARGUMENT...................................................11ARGUMENT..............................................................11
I. Standard of Review...........................................18 II. Incorporation by Reference...................................19 III. Privacy......................................................19 IV. Trespass.....................................................22 V. Unjust Enrichment............................................27 VI. Punitive Damages.............................................28 VII. Injunctive Relief...........................................31
CONCLUSION............................................................32
CERTIFICATES OF BAR MEMBERSHIP........................................38CERTIFICATE OF COMPLIANCE.............................................39CERTIFICATION OF IDENTICAL BRIEFS AND VIRUS SCAN......................40CERTIFICATE OF SERVICE................................................41
APPENDIX TABLE OF CONTENTS
TABLE OF AUTHORITIES
Cases
Bastian v. Marienville Glass Co., 126 A. 798 (Pa. 1924).................23Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955 (2007)...............18, 23Brunette v. Humane Society, 40 Fed.Appx. 594, 2002 U.S.App. LEXIS 13169 (9th Cir. 2002).......................................................22
Cohen v. Resolution Trust, No. 03-2729, 107 Fed. Appx. 287, (3rd. Cir 2004).................................................................23
Cook v. Rockwell Int’l., 273 F.Supp 2d 1175 (D.Colo. 2003)..............25Costlow v. Cusimano, 34 A.D.2d 196; 311 N.Y.S.2d 92 (1970)..............26Dietemann v. Time, Inc., 449 F.2d 245, 247-249 (9th Cir. 1971)..........22Dolan v. City of Tigard, 512 U.S. 374, 384, 129 L. Ed. 2d 304, 114 S. Ct. 2309 (1994)...........................................................30
Gavcus v. Potts, 808 F.2d 596 (7th Cir. 1986)...........................24Hoffman v. Vuilcan Materials Co., 91 F.Supp. 2d 881 (M.D.NC. 1999)......25Houston v. Texaco, Inc., 371 Pa.Super. 399, 538 A.2d 502 (1988).........24In re Paoli R.R. Yard PCB Litigation, 221 F.3d 449, 461 (3d Cir. 2000)..18Jones v. Walker, 425 Pa.Super. 102, 109 (Pa.Super. 1993)................24Kaiser Aetna v. United States, 444 U.S. 164, 176, 62 L. Ed. 2d 332, 100 S. Ct. 383 (1979)........................................................30
Kirkbride v. Lisbon Contractors, 521 Pa. 97, 555 A.2d 800 (1998)........29Kopka v. Bell Tel, 91 A.2d 232, 235 (1952)..............................25Lackner v. Glosser, 892 A. 2d 21, 34 (Pa. Super 2006)...................28Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 433, 73 L. Ed. 2d 868, 102 S. Ct. 3164 (1982)........................................30
Lugue v. Hercules, 12 F.Supp. 2d 1351 (S.D.Ga. 1997)....................25Morris & Essex Mut. Coal Co., v. Delaware, L. & W.R. Co., 42 A. 883, 884 (Pa. 1899)............................................................23
N.E. Women's Ctr., Inc. v. McMonagle, 689 F.Supp. 465, 477 (E.D.Pa. 1988)......................................................................25
Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996)...........................19Nollan v. California Coastal Comm'n, 483 U.S. 825, 831, 97 L. Ed. 2d 677, 107 S. Ct. 3141 (1987)................................................30
Omnipoint Communications Enters., L.P. v. Newtown Township, 219 F.3d 240, 242 (3d Cir. 2000)....................................................18
Pinker v. Roche Holdings Ltd., 292 F.3d 361, 374 n.7 (3d Cir. 2002).18, 19Phillips v. County of Allegheny, et. al., 515 F.3d 224; 2008 U.S. App. LEXIS 2513 (3rd Cir. 2008).........................................18,19
Graham Oil v. BP Oil Co., 885 F. Supp. 716, 725 (W.D.Pa. 1994)..........22Shane v. Fauver, 213 F.3d 113, 116 (3d Cir. 2000).......................18Worldcom, Inc. v. Graphnet, Inc., 343 F.3d 651, 653 (3d Cir. 2003)......18
ii
Treatises and Restatements
2009 Federal Rules Handbook, 12(b)(6)...................................15F.R.C.P. 8(a)(2)........................................................19F.R.C.P. 12(b)(6).............................................1, 5, 18, 21Goodrich Amram, Summary of Pennsylvania Jurisprudence 2d, § 23:1........24Restatement (Second) of Torts, §158.....................................24Restitution and Unjust Enrichment 2d (Draft)....................17, 26, 28W. Page Keeton, Prosser and Keeton on Torts, § 13 (5th ed. 1984)........30
iii
STATEMENT OF SUBJECT MATTER AND APPELLATE JURISDICTION
On April 2, 2008, this action was commenced in the Court of Common
Pleas of Allegheny County, Pennsylvania captioned Boring v. Google, Inc.,
Case No. GD 08-694. Aaron and Christine Boring are residents of Allegheny
County, Pennsylvania.
On May 21, 2008, Google filed a Notice of Removal with the U.S. Dis-
trict Court for the Western District of Pennsylvania, removing the action
to the District Court pursuant to 28 U.S.C. §1441. The District Court had
original jurisdiction of the civil action pursuant to 28 U.S.C. §1332.
On July 18, 2008 and August 14, 2008, respectively, Google and the
Borings each filed a Consent to Jurisdiction by U.S. Magistrate.
On July 22, 2008, the Borings filed an Amended Complaint. On
August 14, 2008, Google filed a Motion to Dismiss the Amended Complaint,
demurring to each count pursuant to F.R.C.P. 12(b)(6).
On February 17, 2009, the Magistrate Judge granted Google’s Motion
to Dismiss, dismissing the Amended Complaint on all counts with prejudice.
On February 27, 2009, the Borings filed a Motion for Reconsideration pur-
suant to Federal Rules of Civil Procedure 59(e). On April 6, 2009, the
Magistrate Judge denied the Borings’ Motion for Reconsideration.
On May 4, 2009, the Borings filed their Notice of Appeal. The Ap-
peal was from a final Order that disposed of all claims. This Court has
jurisdiction to review final Orders of the District Court pursuant to 28
U.S.C. §1291.
1
STATEMENT OF ISSUES
Standard of Review. For each issue, the Magistrate Judge erred in formu-
lating or applying a legal concept, for which the review of the Third Cir-
cuit is plenary, de novo.
1. Invasion of Privacy.
The Magistrate Judge erred in determining, as a matter of law on a 12(b)(6) demurrer, that a reasonable person would be not be highly offended or incur mental suffering, shame or humiliation, having dis-covered that someone recently entered onto secluded private property, took 360° pictures within and while close-up on the driveway close to the home and swimming pool (close to the home windows), while osten-sibly trespassing, after also trespassing and driving far down a pri-vately maintained graveled road and past “Private Road No Trespass-ing” signage, having published the pictures throughout the world via the trespasser’s pervasive proprietary index system; and
FURTHER erred by failing to view plaintiffs’ averments, and rea-sonable inferences drawn therefrom, in the light most favorable to the plaintiffs; erred in considering the tortfeasor’s removal web-links with failure to consider the cost and burden upon the in-jured party to be required to discover and to mitigate within the technological constraints imposed by the tortfeasor; erred in us-ing permissible conduct of plaintiffs, during the course of this civil action, after the fact, as evidence of damage averments be-fore the fact, including that this action was not filed under seal; and erred in using unspecified lack of “claims,” in unspeci-fied jurisdictions, with unspecified facts, to draw invalid con-clusions that tortfeasor’s “Street View” is viable as part of a prima facie pleading ruling; and erred in accepting extrinsic evi-dence from the Court’s own unilateral “Googling” activities re-garding plaintiffs’ counsel.
2. Trespass.
The Magistrate Judge erred in prejudging that compensatory damages are not available as a matter of law; and
FURTHER erred in requiring pleading damages when, at the same time, opining that damages are not an element of a prima facie claim; and erred in holding that plaintiffs had a special duty to plead nominal damages in the complaint and that plaintiffs were required to forfeit any claim to compensatory damages at the pleading stage without the aid of discovery or the benefit of ex-pert review.
2
3. Unjust Enrichment.
The Magistrate Judge erred in ruling as a matter of law that: i) the relationship between the parties must be construed as contractual; ii) that plaintiffs did not confer anything of value on Google; and iii) that there is no independent cause of action for unjust enrichment being subsumed by the other claims, particularly when the other claims were dismissed.
4. Punitive Damages.
The Magistrate Judge erred in holding punitive damages are not avail-able as a matter of law even though pleaded and evidence is in the pos-session of defendant.
5. Injunctive Relief.
The Magistrate Judge erred in dismissing the claim for injunctive re-lief leaving the plaintiffs without even a destruction/non-use claim.
3
STATEMENT OF THE CASE
The Borings filed this action against Google, among other claims,
for trespass and invasion of privacy. [Complaint; A29-35]
The claims arise from Google's “Street View” practices, whereby
Google traverses the physical earth with one or more 360° cameras and then
automatically publishes the results throughout the world via the Internet
as part of its profit strategy. Google’s implementation of Street View is
a social phenomenon.
For the first time, a commercial enterprise has the ability to use
21st Century roads, with 21st Century vehicles, with 21st Century 360°
camera technology, with 21st Century recording, storage and digitization
technology, with 21st Century indexing and search technology, with 21st
Century Internet access technology, with 21st Century pervasive publishing
technology.
Notwithstanding a "Private Road No Trespassing" road sign, Google
drove from a paved public road onto the Borings’ crunching graveled and
potholed privately owned road while taking 360° photographic imagery of
the surroundings. Continuing on the privately owned road and past clearly
marked “Private Road No Trespassing” signage, Google drove from the pri-
vate road deeper back into and onto the Borings’ private residential
driveway. Then, Google proceeded to take additional close-up pictures of
the Borings’ secluded residence, swimming pool and surroundings, while ac-
tually trespassing on the Borings’ driveway at the front of their home.1
1 “Crunching graveled and potholed” was not averred in the Complaint, nor was the length of more than 1000 feet (three football fields inclusive of a right of way); nor was the fact that the mailbox is at the beginning of the private road 1,000 feet from the home at the public road junction. Also, we also understand that drivers are paid by the mile photographed. These are detail inferences now and trial facts later.
4
Google commercially used the pictures by publishing them throughout
the world as part of Google’s profit strategy in its Street View program.
The acts were without consent. Id.
____________________________________________
Google demurred to all counts, by F.R.C.P. 12(b)(6), and the Magis-
trate Judge dismissed all counts, and thus the entire case, giving rise to
this appeal. The Magistrate Judge dismissed even though Google’s specific
intent of the trespass was to accomplish the very goal that was, in fact,
accomplished. Google’s intent was to enter the land, and to acquire the
pictures that were actually acquired and to publish them as they were ac-
tually published, in Google’s commercial environment.2
____________________________________________
In ruling on the privacy count, the Magistrate Judge concluded that
it is “hard to believe” that the damage was “as severe” as averred, appar-
ently because of post-filing publicity about this case. To reason thusly,
the Magistrate Judge admitted “Googling.”3 Googling for data by the trial
judge, as part of the 12(b)(6) demurrer review, is clearly improper, if
not undermining confidence in the entire judicial process: that it oc-
curred is no less concerning than why it occurred. And, even more egre-
giously, the conclusive inference drawn against the Borings is not sup-
2 E.g., this was not a misdirected commercial ice cream truck, someone pushed onto the land, someone turning around, or a mail carrier. Google was on the private property, intentionally, for a profit purpose, to ac-quire pictures for publication, which it did acquire and publish, imple-menting Google’s commercial profit strategy.3 Opinion, dated February 17, 2009 at 4-5; A7-8 [hereafter “Opinion”] (“’Googling’ the name of the Borings’ attorney demonstrates that publicity regarding this suit has perpetuated dissemination of the Borings’ names and location, and resulted in frequent re-publication of the Street View images. Plaintiffs’ failure to take readily available steps to protect their own privacy and mitigate their alleged pain suggests to the Court that the intrusion and the [sic] their suffering was less severe than they contend.”)
5
ported by one reference and, therefore, cannot even be traced for its
proper quality and authenticity apart from mere judicial speculation. The
undersigned appeals to this Court that the proper admission of evidence to
a neutral judge is difficult enough for zealous advocates, let alone try-
ing to manage a situation where the trial judge is conducting searches re-
garding the legal activities of plaintiffs’ attorneys using the defen-
dant’s own index services.
In addition to googling, the Magistrate Judge also performed unref-
erenced, uncategorized, independent research to draw a serious incorrect
statistical inference against the Borings, to wit: that the lack of claims
made against Google (apparently leaving it viable as a service) tends to
prove that the Borings’ privacy claim was not minimally pleaded pursuant
to 12(b)(6).4 The act was improper, and the reasoning was clearly invalid
speculation.5
Even more revealing, the Magistrate Judge expressly concluded that
“any attempted amendment would be futile.” [Opinion, at 12, n. 8; A15]
In saying so, the Magistrate Judge admitted the deeper belief and ratio-
nale, that nothing would allow this case to proceed to discovery on any
count: to wit, that there are no facts that could be amended with the same
counts, nor any count that could be amended with the same facts, nor any
4 Opinion, at 5, A8 (“[I]t does not appear that the viability of Street Search [sic] has been compromised by requests that images be removed, nor does a search of relevant legal terms show that courts are inundated with - or even frequently consider - privacy claims based on virtual mapping.”)5 “Inundated” is not defined as a standard, but the inference must be that an injured person needs a computer, must know how to use it, then be caused to investigate online. There is no foundation to draw any infer-ence against the Borings that Google’s database is not replete with undis-covered violations. In fact, the inference must be that a statistician would prove the presupposition as backwards: property owners are older, older people are less technologically capable, and the most secluded per-son, with the most egregious injury, would be least able to discover it.
6
combination of both, that would allow the facts to match the law and to
permit the case to proceed on any basis (even with inferences).
_______________________
Google is a success to be sure. But, because Google is a success
does not mean that it follows that it has done no wrong. Such a legal
presumption is reserved for kings. The Borings have their inference.
If a person claims an accident, and I find his penny in my pocket, I might believe it; but, if I find my penny in his pocket, I am not so sure.
Google’s success is no accident, and Google’s actions to achieve that suc-
cess are no accident. Google has far too many pennies in its pocket.
Sweet words aside, Google gets exactly what it wants, and has the profit
to show for it. But, there are no accidents. The Google people are very
smart people, and they are equally clever. While we love Google for sat-
isfying our addictions for “free” computer candy, Google acquires raw
power in our new age: money, technology and information. We are sugar-
blind where we should be vigilant: to see that Google enjoys profits by
socializing its expenses onto the unwary. The inference now, and fact to
be proved, after discovery at trial, is as follows:
Google’s “Street View” program is a database that requires “critical mass” to be viable. Critical mass is the point where enough people have enough random search success that the site gains a positive reputation for reliable results. A search database needs data, in volume, fast. Google values its time and money, and needs to gain competitive advantage, so it in-tentionally disregards property rights ― and the commitment of time and money to verify data before or after the fact ― and publishes automatically.
Google does exactly what it intends: it acquires data, pub-lishes data, and then makes the sweet offer of an after-the-fact mitigation policy. This yields perfect cost efficiency and extremely high profitability, because there is no ineffi-ciency or cost in verifying the content that would already be permissible; only errors actually discovered by people on their own time, at their own cost, bubble up to be removed by the au-tomated technology, by special request opt-out. Google inten-
7
tionally socializes its compliance costs by requiring that we use our own valuable resources to “cleanse” Google’s database.
Google is a probability expert. It disregards property rights and merely runs a probability risk analysis: 1) what is the probability that we will end up on someone’s property in viola-tion of their rights? 2) if we do, what is the probability that they will actually discover it? 3) if they do actually discover it, what is the probability that they will care? 4) if they do care, what is the probability that they will not be satisfied with our removal system? 5) if they are not satis-fied, what is the probability that they will start to enforce their rights? 6) if they do start to enforce their rights, what is the probability that we will ultimately have to pay any money? 7) if we do have to pay any money, what is the proba-bility that the amount will have a material negative impact on our $30B in net worth, in light of any injured party’s average claim?
Let us at least admit the game. The Google people are very smart
people. There are no accidents. Google places burdens onto each of us —
indeed, onto society generally — to fix the problem that it has chosen to
create, at our cost, and for its own profit. Google argues that we have
to take our own time to correct their mistake, and their mistake only oc-
curred to save their own time. Google thinks only its time is money.
It may be just a little time from everyone, but it adds up. Indeed,
it ends up in Google’s pocket for their use and benefit — at least until
we happen to discover it, stop the happiness we are otherwise trying to
pursue, and use our training and valuable equipment to make the special
request to opt out.
____________________________________________
The infraction by Google is now less important that the error in
dismissing the case, because the particular has become the policy:
It is one thing that even one drop of my blood is extracted for the profit of another; it is an entirely different thing if the law should permit it.
If the Magistrate Judge is correct, then the law is that Google’s
acts are effectively legally permitted, at least in this jurisdiction.
8
They are permitted, even if Google should do them as part of a business
strategy, and with the flagrant impunity of a demurrer’s “so what.” The
Magistrate Judge does not make Google obliged to answer for its actions,
nor does the Magistrate Judge even allow the Borings equitably to claim
that the pictures must be destroyed.
The ruling of the Magistrate Judge leaves private property owners
helpless and creates an implied servitude on the land. Indeed, the acts
are not only effectively permitted for Google, but, by equal protection of
the law, are also permitted to countless other profiteers, driving up and
onto the Borings’ “private” property, seriatim. No matter what circuitous
legal bait Google may offer this Court in this appeal; that is the legal
effect.
____________________________________________
Although the principles of private property and trespass are an in-
herent part of our American heritage, this is the first time that a pri-
vate enterprise has the money, the technology, and the information — that
is, the raw power in the new age of our existence — to contend so deeply
against our guaranteed individual rights, as a social phenomenon.
Google is a young darling in the world of corporate enterprise.
But, if we should be vigilant to see it, this baby behemoth has not even
yet hit its stride, or is even toddling. Google already controls money,
technology and information, throughout the world. And, it is just getting
started. We applaud Google’s success, with only the reasonable condition
that Google’s commercial and social omnipotence be checked and balanced
where providence permits.
9
A jury of the People can weigh the relative social value of private
property versus the intrusions of technology. Google simply needs to an-
swer for its actions, defend its policies and testify to the quality of
its database. Indeed, that it has been and is careful with our rights.
There is no one, and no law firm, that supports and applauds tech-
nology and entrepreneurial ventures more than the undersigned. To wit, it
is our name. But, there is a point at which the Entrepreneurial Spirit
must attorn to the American Dream it serves, and pay rent.
10
STATEMENT OF THE FACTS
The Borings live at 1567 Oak Ridge Lane; their home is on a private
road, and it is not visible to the public eye, being surrounded by trees.
The property is secluded, with a clearly marked “Private Road No Trespass-
ing” sign. The Borings had an expectation of privacy. [Complaint, ¶¶1,
5-6, 9, 10, 11; A30-35]
Google has a “Street View” service, the scope of which is to gather
pictures of paved non-private roads, using mounted cameras on vehicles.
[Id., ¶¶7-8]
The Borings discovered that Google trespassed, and, while on the
Borings’ very driveway without authorization, Google took close-up pic-
tures of their residence, including the recent additions and the swimming
pool. [Id., ¶¶9, 17] Google drove on the private drive, past the clearly
marked “Private Road No Trespassing” signage onto the Borings driveway,
with its vehicle packed with cameras, in close proximity to the residence,
garage and swimming pool, and recorded the secluded surroundings. [Id.,
¶¶7, 8, 9, 11, 13, 15]
The invasion to seclusion was substantial; learning that Google had
trespassed onto their private road (1,000 feet of crunching gravel and
potholes), past “Private Road No Trespassing” signage, entered property
unbeknownst to the Borings, driving close up to the residence and swimming
pool, and taking photographs that were published worldwide, was highly of-
fensive and a disregard of the Borings’ privacy interests. [Id. ¶¶7, 8,
9, 11, 13]. The Borings purchased their home for a considerable sum of
money, and privacy and seclusion of the home was a major component to pur-
chase the property. [Id., at ¶5]
11
Publication of close-up photographs, including the Borings’ swimming
pool, was not authorized or desired, and exposes the Borings and their
family to additional undesired life risks, including based upon new meth-
ods of data access and dissemination, contrary to their posted and desired
seclusion; the imposition is not of their choosing. [Id., at ¶15].6
Google failed to take proper measures to prevent the conduct, and
does not implement appropriate controls or filtering prior to publication.
[Id., at ¶15, 24, 26, 28] Google profits by the conduct. [Id., at ¶27]
The Borings incurred mental suffering, diminishment of market value,
consequential damages, punitive damages, compensatory damages, incidental
damages, and all other damages deemed to be just after discovery and
trial. [Id., at 14, 15, 24; each Count’s Prayer for Relief]
STATEMENT OF RELATED CASES
There are no related cases and this case has not been previously reviewed.
6 For example, many people have children and grandchildren. Certainly, the children and grandchildren exist in the world, and their physical likeness is public information. But, parents and grandparents decide whether or not to publish pictures of the children on Facebook and MySpace, for exam-ple. This is not an issue of legal theory, it is one of practicality in the new world of data accessibility and dissemination: one does not need to be forced to “show its gold to thieves” when it chooses to be rela-tively secluded from something. It is about free choice. For this rea-son, as a practical matter, even government agencies, such as Allegheny County, PA, have reduced the online accessibility of public data. Even though the data is public information, the ease of access and dissemina-tion yields its own independent problems and legal interests in our new shrinking world, as a practical experiential matter. This may be why the Chief Judge of the United States District Court for the Western District of Pennsylvania requested removal of the public information names of ap-proximately 100 judges from the Allegheny County website. The interest served does not relate to the public nature of the data, but is one of practical judgment guided by experience: ease of access and dissemination.
12
SUMMARY OF THE ARGUMENT
The fact scenario is so basic that there is no need to restate mat-
ters contained in the Summary of the Case and/or Statement of the Facts.
The Magistrate Judge concluded, “Plaintiffs have failed to state a
claim under any count” and “any attempted amendment would be futile.”
[Opinion, at 1, A4; at 12, A15]
There are two general analytical categories for pleading: 1) the de-
fendant’s conduct; and 2) the damage. A combination of pleading one or
both of these categories forms elements of the claim.
Conduct.
Google’s conduct in this case is straight-forward. The Boring have
nothing remaining to plead from a “short and plain” perspective, pursuant
to F.R.C.P. 8(a). Certainly, Google is on fair notice to frame a defense
that its vehicle was not on the property, that the driver did not take
close-up 360° pictures, and that the pictures were never published.
By way of example, in a bodily trespass case, whether a person actu-
ally touched another may be a point of dispute; that is, whether or not
the conduct occurred. But, here, the defense is not to the Borings’ case
in chief, but, if at all, by an affirmative defense claimed by Google for
which Google has the burden of proof. For example: Google admitting it
was on the property, took the pictures, and commercially published them;
however, a claim that liability is excused because: there was no gate or
guard dog, the entry was trivial, that Google is effectively a mail car-
rier or a person turning simply around in a driveway.
The irony is that, for the trespass count, for example, the Borings
would expect almost to be assured summary judgment on liability with bi-
furcation of the trial for damages only. Requests for Admission on the
13
trespass count would almost assuredly prove liability, but for survival of
any affirmative defenses. And, that brings us to damages.
Damages.
The Magistrate Judge’s ruling is centered on damages. Certainly,
from a conduct perspective, the Borings pleaded exactly the wrongful con-
duct that, if accepted as true, states the claim. However, the Magistrate
Judge finally adjudicated all damage issues and denied all counts, with
the googled information in mind, finding damages “hard to believe” on a
convincing fact standard of pleading for damages (not conduct),7 while, at
the same time, ruling that amendment of the pleading would be futile.
[Opinion, at 12; A15]
Regarding the trespass count, and as a result of the same presuppo-
sitions and improperly drawn inferences, the Magistrate Judge ruled that
the Borings, at the pleading stage, had to waive any claim to compensatory
damages as a matter of law in order to proceed, without even the benefit
of discovery or expert assessment. [Opinion, 8-9; A11-12] This is so,
even though the Magistrate Judge also ruled that damages are not part of a
prima facie claim for trespass.8
Pleading damages is different than pleading conduct, and elements of
claims are distinct in this regard: damage is not a prima facie element of
all causes of action; in some cases, damages are presumed as unified and
self-perfected within the conduct itself. For example, conduct in the na-
7 Opinion, at 4; A7 (“[I]t is hard to believe”; “Plaintiffs have not al-leged facts to convince the Court otherwise.”) The Magistrate Judge begs the ultimate jury determination and clearly fails to draw the proper in-ference. See F.R.C.P. 54(c) (“Every [non-default] final judgment should grant relief to which each party is entitled, even if the party has not demanded that relief in its pleading”).8 Reconsideration Opinion, dated April 6, 2009 [hereafter “Reconsidera-tion”] at 8; A11 (“[D]amages are not part of a prima facie claim for tres-pass.”)
14
ture of a trespass to body or property is inherently legally unpermitted.
But, for example, the conduct of an unsterilized doctor might or might not
be legally unpermitted: the conduct and damage are not unified; the prima
facie claim depends upon a conditional secondary event of damage, and the
satisfaction of that condition must be pleaded to perfect the claim.
Moreover, wrongful conduct can be asserted and defended at the on-
set, but the pleading of damages, with assessments and categorizations,
can be sophisticated and may require expert assessment after discovery and
the adducement of evidence.9 Also, at the inception of a case, a trial
judge may be incompetent to pre-judge the merits of a damage claim, par-
ticularly when discovery has not occurred, and the trial judge must,
whether personally agreeing or not — or finding difficult or “hard to be-
lieve” or not10 — exercise the judicial discipline and restraint to allow a
plaintiff a full and fair opportunity to make its case and claim without
prejudgment.
To use the trespass to body example again, a person may be groped;
but it is a point of discovery and expert damage assessment if the data
taken from the groper’s trespass is not for pleasure, but is the acquisi-
tion of data to be used in a commercial environment. For example, it
might be that the groper supplies the clothing industry with data, and is
paid for the individualized body statistic. If the groper required data
for its commercial purpose, and used the data for its commercial endeavor
and for its profit, there is no basis to prejudge that the groper “took”
9 See, generally, Black’s Legal Dictionary 9th, “Damages” (two and one-half pages of damage categories); see also F.R.C.P. 54(c).10 See, Opinion, at 4, A7 (“hard to believe”); this is not a proper legal standard for the truth sought to be proved; to wit, many things that are true are hard to believe; see 2009 Federal Rules Handbook, 12(b)(6), 429 (“No claim will be dismissed merely because the trial judge disbelieves the allegations or feels that recovery is remote or unlikely.”)
15
nothing, as the Court below opined; it is inferred, if not self-evident,
that the data has value from the specific intent and conduct.11
Whether an expert can attribute compensatory damage related to the
value of the data in a profit-environment is a point for the expert, after
discovery, and pre-trial motion practice in due course.12
Certainly, the groper who needs the data should have negotiated for
the data, but, of course, that might raise questions about the scope of
use and particulars, and it would take time and cost money. So, the
groper wrongly avoids the negotiation, and gropes for exactly the value
desired, and by commercializing the wrongfully acquired data, makes its
profit.13
For a judge to presuppose compensatory damages cannot be claimed or
calculated, when the defendant is a commercial enterprise commercially us-
ing the fruits of the alleged tortuous conduct for which there was spe-
cific intent to acquire, is both clearly an improper inference and a pre-
11 Opinion, at 10 (“It cannot fairly be said that the Borings conferred anything of value upon Google. The entire thrust of the Borings’ allega-tions is that Google took something from the Borings without their con-sent, and should be liable for having done so.”) This is another telltale sign of the Magistrate Judge’s presupposition and error. In 2009, it is not about taking trees, as it might have been in 1899.12 Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993). Compen-satory damages is a damage completely separate in purpose from punitive damages. If the groper promises not to do it again, improves controls and spends millions to create general social affinity by giving away free clothing, it may be that punitive damages are not awarded, but the groper still sits on profits for which payment has not been made to compensate the provider of the data. It may even be that the groper uses the profit acquired by the wrongful deeds to create that social affinity. The com-pensatory damage for pain and suffering may also be applicable if the per-son groped perceives it; but, the compensation for the value of the data is a different interest and a different measure. The Borings should not have to waive compensatory damages, as a matter of law, at the pleading stage, because the Magistrate Judge does not yet see or does not properly draw the inference of a compensatory value to be presented by an expert.13 Certainly, the groper may assert affirmative defenses, such as the grope is exactly the same conduct of a doctor, or that there was no protective gear, or that it was trivial, or that the groper was involuntarily pushed into the touch.
16
sumes the perfect pre-discovery professional competence of the judge to
determine the legal and factual impossibility of the damage assertion.
Indeed, the Restatement of Restitution 2d (Draft) sets forth:
§ 40. Trespass and Conversion, Comment b. Measure of Recovery. ...Restitution is justified in such cases because the advan-tage acquired by the defendant is one that should properly have been the subject of negotiation and payment...The more difficult issues of valuation are accordingly those in which the defendant has made a use of the claimant’s property for which there is no ordinary market; or in which the defendant has bypassed any market by taking without asking, or by pro-ceeding in the face of a refusal. Valuation in such cases re-sists any precise formula, and courts exercise a wide discre-tion in fixing a price for the benefit in question—in other words, a measure of liability—that will correspond to the un-just enrichment of the defendant. The one constant factor in such cases is that values will be more liberally estimated against a conscious wrongdoer...
Id., §40.
According, the Magistrate Judge’s drew improper inferences, using
invalid information, and begged exactly the damage question that the Bor-
ings assert they are entitled to an inference to prove.
17
ARGUMENT
I. THE STANDARD OF REVIEW
1. The Standard of Review for Third Circuit.
This appeal arises from the Magistrate Judge’s granting of Google’s
F.R.C.P. 12(b)(6) demurrer on all counts, dismissing the entire action
with prejudice.
The standard of review for a dismissal under Fed.R.Civ.P. 12(b)(6)
is de novo. Phillips v. County of Allegheny, et. al., 515 F.3d 224; 2008
U.S. App. LEXIS 2513 (3rd Cir. 2008), quoting, Omnipoint Communications
Enters., L.P. v. Newtown Township, 219 F.3d 240, 242 (3d Cir. 2000); see
In re Paoli R.R. Yard PCB Litigation, 221 F.3d 449, 461 (3d Cir. 2000)
(“de novo means [that] ... the court's inquiry is not limited to or con-
stricted by the record ... nor is any deference due the ... conclusions
[under review]”).
2. The Standard of Review for F.R.C.P. 12(b)(6).
The standard of review for a dismissal under F.R.C.P. 12(b)(6) is to
accept all factual allegations as true, construe the complaint in the
light most favorable to the plaintiff, and determine whether, under any
reasonable reading of the complaint, the plaintiff may be entitled to re-
lief. Phillip, 515 F.3d at 231, citing, Pinker v. Roche Holdings Ltd.,
292 F.3d 361, 374 n.7 (3d Cir. 2002); Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 127 S. Ct. 1955, at 1969 n.8, 167 L. Ed. 2d 929 (2007); World-
com, Inc. v. Graphnet, Inc., 343 F.3d 651, 653 (3d Cir. 2003). Moreover,
in the event a complaint fails to state a claim, unless amendment would be
futile, the District Court must give a plaintiff the opportunity to amend
the complaint. Shane v. Fauver, 213 F.3d 113, 116 (3d Cir. 2000).
18
Federal Rule of Civil Procedure 8(a)(2) requires only “a short and
plain statement of the claim showing that the pleader is entitled to re-
lief." Phillips, 515 F.3d at 231. In considering a motion to dismiss,
the issue is not whether the plaintiffs ultimately will prevail but
whether they are entitled to offer evidence to support their claims. Nami
v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996) (emphasis added).
II. INCORPORATION BY REFERENCE.
Certain facts and argument were stated in the Statement of the Case,
Statement of the Facts and Summary of Arguments. In all prudence and cau-
tion those sections are hereby incorporated into each of the following
Sections III through VII, inclusive, as if again restated therein.
III. INVASION OF PRIVACY.
The Magistrate Judge erred in determining, as a matter of law on a 12(b)(6) demurrer, that a reasonable person would be not be highly offended or incur mental suffering, shame or humiliation, having dis-covered that someone recently entered onto secluded private property, took 360° pictures within and while close-up on the driveway close to the home and swimming pool (close to the home windows), while osten-sibly trespassing, after also trespassing and driving far down a pri-vately maintained graveled road and past “Private Road No Trespass-ing” signage, having published the pictures throughout the world via the trespasser’s pervasive proprietary index system; and
FURTHER erred by failing to view plaintiffs’ averments, and rea-sonable inferences drawn therefrom, in the light most favorable to the plaintiffs; erred in considering the tortfeasor’s removal web-links with failure to consider the cost and burden upon the in-jured party to be required to discover and to mitigate within the technological constraints imposed by the tortfeasor; erred in us-ing permissible conduct of plaintiffs, during the course of this civil action, after the fact, as evidence of damage averments be-fore the fact, including that this action was not filed under seal; and erred in using unspecified lack of “claims,” in unspeci-fied jurisdictions, with unspecified facts, to draw invalid con-clusions that tortfeasor’s “Street View” is viable as part of a prima facie pleading ruling; and erred in accepting extrinsic evi-dence from the Court’s own unilateral “Googling” activities re-garding plaintiffs’ counsel.
19
The Borings’ statement of facts, if accepted as true, satisfy a
short and plain statement of facts to state a claim for relief, pursuant
to F.R.C.P. 8(a).
To the Borings’ averments, the Magistrate Judge stated that facts
must be alleged that the intrusion “could be expected to cause mental suf-
fering, shame or humiliation to a person of ordinary sensibilities.”
[Opinion, pg. 4, A7]. Yet, the Magistrate Judge finally adjudicated the
entire claim against Plaintiffs at the pleading stage, stating:
While it is easy to imagine that may whose property appears on Google’s virtual maps resent the privacy implications, it is hard to believe that any – other than the most exquisitely sensitive – would suffer shame or humiliation. The Plaintiffs have not alleged facts to convince the Court otherwise.
[Id. (emphasis supplied)] Contrary to the Borings pleading of the conduct
to state the claim, the Magistrate Judge required additional factual alle-
gations of the damage on a “convince” standard. The Magistrate Judge,
clearly by presupposition, gave little weight to the seclusion that the
Borings intend to prove. Seclusion is not absolute, but relative: that
is, seclusion from something. Because children’s faces are public at some
degree does not mean seclusion is waived to Google for all degrees. The
Magistrate Judge draws from no precedent applicable to these facts, nor
can that be accomplished without discovery and trial. Nevertheless,
clearly the Magistrate Judge did not view the facts in a light most favor-
able to the Borings.
Even a more egregious error of law, the Magistrate Judge then fur-
ther opined, without any legal basis whatsoever, and no factual references
whatsoever:
Although the Plaintiffs have alleged intrusion that was substantial and highly offensive to them and have asserted that others would have a similar reaction, they have failed to set out facts to sub-
20
stantiate the claim. This is especially true given the attention that the Borings have drawn to themselves and the Street View images of their property. The Borings do not dispute that they have al-lowed the relevant images to remain on Google Street View, despite the availability of a procedure for having them removed from view. Furthermore, the have failed to bar others’ access to the images by eliminating their address from the pleadings, or by filing this ac-tion under seal. “Googling” the name of the Borings attorney demon-strates that publicity regarding this suit has perpetuated dissemi-nation of the Borings’ names and location, and resulted in frequent re-publication of the Street View images. The Plaintiffs’ failure to take readily available steps to protect their own privacy and mitigate their alleged pain suggests to the Court that the intrusion and the [sic] their suffering was less severe than they contend.
Id at 4-5. The Magistrate Judge opined that the Borings should have filed
under seal, without any legal basis whatsoever for the proposition. As
stated above, the Magistrate Judge conducted “googling” of the attorneys’
activities in this case, on a 12(b)(6) demurrer.14 Google is the defen-
dant, and the Court admits using the defendants’ indexing methods to make
determinations on matters of law; there are no references whatsoever.
The Magistrate Judge does not cite to the record, nor articulates
any fact underlying the finding, so the Borings are clearly prejudiced in
not even being able to definitively tell this Court exactly what the Mag-
istrate Judge reviewed to make its ruling; the ruling is completely unfas-
tened by references and is, therefore, tantamount to improper speculation
and reverse inference. The Magistrate Judge’s “Googling” efforts under-
mines confidence in the entire legal process because a party plaintiff
should not have to proceed in fear that a neutral judge is going to make
determinations based upon research of activities off the record. That it
happened is as concerning as why it happened.
Moreover, "[a]ny illegal entry would be sufficiently serious and of-
fensive to state a claim for invasion of privacy." Brunette v. Humane So-
14 The Magistrate Judge clearly set forth the standard of review under F.R.C.P. 12(b)(6).
21
ciety, 40 Fed.Appx. 594, 2002 U.S.App. LEXIS 13169 (9th Cir. 2002); see
also Dietemann v. Time, Inc., 449 F.2d 245, 247-249 (9th Cir. 1971) (find-
ing invasion of privacy where reporter entered and photographed the plain-
tiff at home without authorization).
The Magistrate Judge stated that amendment of the pleading would be
futile. [Opinion, pg. 12, n. 8, A15] And, yet, the Magistrate Judge re-
quires additional facts to be pleaded.
IV. TRESPASS.
The Magistrate Judge erred in prejudging that compensatory damages are not available as a matter of law; and
FURTHER erred in requiring pleading damages when, at the same time, opining that damages are not an element of a prima facie claim; and erred in holding that plaintiffs had a special duty to plead nominal damages in the complaint and that plaintiffs were required to forfeit any claim to compensatory damages at the pleading stage without the aid of discovery or the benefit of ex-pert review.
The Magistrate Judge ruled that:
The Court considers this argument in order to eliminate any possi-bility that the language of its Memorandum Opinion addressing Defen-dant’s Motion to Dismiss might be read to suggest that damages are part of a prima facie case for trespass. Clearly, they are not. The tort is complete once there has been an unprivileged intentional entry upon property in the possession of another. See Graham Oil v. BP Oil Co., 885 F. Supp. 716, 725 (W.D.Pa. 1994).
[Reconsideration, at 2; A18] So far, so good; the Borings pleaded the
conduct constitutes an intentional trespass [Complaint ¶17, A32]. But,
then the court proceeded to state immediately thereafter:
What the Court did hold was that the Borings, in their Amended Com-plaint, failed to allege facts sufficient to support a plausible claim that they suffered any damage as a result of trespass.
[Id.] Plaintiff met its prima facie pleading burden, only to have not met
it in the next sentence based upon the Magistrate Judge’s requirement of
22
additional pleading.15 The authority cited is equally misguided. The Mag-
istrate Judge cited the 1899 case of Morris & Essex Mut. Coal Co., v. Del-
aware, L. & W.R. Co., 42 A. 883, 884 (Pa. 1899) for the proposition that
only nominal damages and not compensatory damages are available. However,
that case expressly, on its own terms, is inapplicable to this case; to
wit, “The whole proceeding was to recover damages based, not upon a wrong-
ful invasion of the plaintiff’s rights, but upon an act of assembly...”
Morris, at 445.
The Magistrate Judge cited Bastian v. Marienville Glass Co., 126 A.
798 (Pa. 1924) affirming the trial court’s instruction for defendant be-
cause plaintiff failed to provide proof of actual damages, and although
nominal damages may have been permitted, plaintiff failed to plead them.
First, this case was in assumpsit, in Pennsylvania state court, subject to
fact pleading rather than notice pleading requirements. Second, more im-
portantly, the posture of the case was “[a]fter the pleadings had been
closed and discovery completed.” Id., at 140. In that case, plaintiff was
given a full and fair opportunity to adduce evidence of damage, and it was
expressly stated as inapplicable where “a property right involved.” Id.
Lastly, the Magistrate Judge’s reliance on Cohen v. Resolution
Trust, No. 03-2729, 107 Fed. Appx. 287, (3rd. Cir 2004), is equally inap-
plicable. In Cohen, this Third Circuit Court held that nominal damages
were waived not having been requested through and including at trial, but
this Court did so only after providing a full and fair opportunity for
plaintiff to make a case to prove compensatory damages. Id., at 288. It
is noted that this was expressly not a property rights case, where damages
15 See, generally, Summary of Argument (distinguishing conduct and damage); See Opinion, at 3; A6 (citing Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955 (2007) “the [proscribed] conduct”)
23
are presumed. Certainly, if the Borings cannot sustain a claim for com-
pensatory damages after full and fair discovery, and if the Borings do not
seek leave to amend for nominal damages, and if such a request would be
necessary for this property rights case, the applicability of Cohen can be
revisited as applicable in due course.
It is the substantive law of this Commonwealth that it is not neces-
sary to allege any actual injury or damage as an element of the claim:
There is no need to allege harm in an action for trespass, because the harm is not to the physical well-being of the land, but to the landowner's right to peaceably enjoy full, exclusive use of the property.
Jones v. Walker, 425 Pa.Super. 102, 109 (Pa.Super. 1993); see, Houston v.
Texaco, Inc., 371 Pa.Super. 399, 538 A.2d 502 (1988), alloc. den., 520
Pa. 575, 549 A.2d 136 (1988). Moreover, see Restatement (Second) of
Torts, §158, 163. Section 158 states as follows:
One is subject to liability to another for trespass, irrespective of whether he thereby causes harm to any legally protected interest of the other, if he intentionally (a) enters land in the possession of the other, or causes a thing or a third person to do so...
Id. (emphasis added). And, in Goodrich Amram, Summary of Pennsylvania Ju-
risprudence 2d, § 23:1, it is further stated:
Under this definition, one who intentionally and without consensual or other privilege enters land in possession of another or causes anything or a third person to do so is liable as a trespasser irre-spective of whether harm is thereby cause to any legally protected interest.
Id. (emphasis added). See also, Pennbaur v. City of Cincinnati, 745 F.-
Supp. 446 affirmed 947 F.2d 945 (S.D.OH 1990) (every unauthorized entry
upon land of another constitutes a trespass, and regardless of whether the
owner suffered substantial injury, he at least sustains legal injury which
entitles the owner to verdict for some damages); accord Gavcus v. Potts,
808 F.2d 596 (7th Cir. 1986); Hoffman v. Vuilcan Materials Co., 91 F.Supp.
24
2d 881 (M.D.NC. 1999); Wilson v. Amoco, 33 F.Supp.2d 969 (D. Wyo. 1998);
Cook v. Rockwell Int’l., 273 F.Supp 2d 1175 (D.Colo. 2003); Lugue v. Her-
cules, 12 F.Supp. 2d 1351 (S.D.Ga. 1997).
The Magistrate Judge originally opined that the Plaintiffs “do not
describe damage to or interference with their possessory rights.” [Opin-
ion, at 8; A11]. In clear error to Walker, the Magistrate Judge merely
cited to a district court case for the ever-present standard proposition
that liability is imposed for damages caused, to wit: “See N.E. Women's
Ctr., Inc. v. McMonagle, 689 F.Supp. 465, 477 (E.D.Pa. 1988).” [Opinion,
at 8; A11]. The indirect citation to Kopka v. Bell Tel, 91 A.2d 232, 235
(1952) stands for the same proposition.
The fact that the District Court of Philadelphia stated the positive
proposition that, “a trespasser is responsible in damages for all injuri-
ous consequences which are the natural and proximate result of his con-
duct,” does not make the negative inverse proposition true. That is, that
without physical damage, there is no liability; or, that the damage must
be pleaded or the case dismissed.16 While a trespasser is responsible in
damages for all injurious consequences which are the natural and proximate
result of his conduct, this is not the same as opining that a plaintiff,
in a trespass action, has to establish actual damages to maintain the ac-
tion at the initial pleading.17 In N.E. Women, the Court was merely not
16 E.g., “If you are hungry, then you eat” does not create the truth of the inverse negative proposition, “You cannot eat unless you are hungry.” The question is not whether damages must be proximate at the post-trial point of award. The question is whether they must be pleaded as a an element and/or whether a plaintiff must waive a claim for compensatory damages to proceed in trespass.
17 Post discovery, defendants in N.E. Women contended that the Court erred by permitting the jury to award plaintiff damages for injury to its busi-ness as well as injury to its property under the trespass claim. The de-fendants argued that they should only be required to pay for the actual damage to plaintiff's real property, not for any injury to plaintiff's
25
limiting plaintiff to actual damages to real property. Moreover, impor-
tantly, the Court still let the jury decide whether the damages flowed
from the trespass.18 The Restitution and Unjust Enrichment 2d (Draft) sets
forth as follows:
§ 40. Trespass and Conversion: (1) A person who obtains a ben-efit by an act of trespass or conversion, is accountable to the victim of the wrong for the benefit so obtained. (2) The measure of recovery depends on the blameworthiness of the de-fendant’s conduct. As a general rule: (a) a conscious wrong-doer, or one who acts despite a known risk that the conduct in question violates the rights of the claimant, will be required to disgorge all gains (including consequential) derived from the wrongful transaction.
Comment b. Measure of Recovery. ...In consequence, a conscious wrongdoer may be liable to disgorge more than the value of what was taken or obtained in the first instance. ... Restitu-tion is justified in such cases because the advantage acquired by the defendant is one that should properly have been the subject of negotiation and payment....The more difficult is-sues of valuation are accordingly those in which the defendant has made a use of the claimant’s property for which there is no ordinary market; or in which the defendant has bypassed any market by taking without asking, or by proceeding in the face of a refusal. Valuation in such cases resists any precise formula, and courts exercise a wide discretion in fixing a price for the benefit in question—in other words, a measure of liability—that will correspond to the unjust enrichment of the defendant. The one constant factor in such cases is that val-ues will be more liberally estimated against a conscious wrongdoer.. . . A conscious wrongdoer ought not to be left on a parity with a person who, in pursuing the same objectives,
business. The Court found that it "sees no valid reason why a trespasser could not be held liable for injuries to his or her business which are properly found by a jury to be the proximate cause of the trespass. If plaintiff's alleged injuries to business were not the consequence of de-fendants actions, the jury would have found that they were not the proxi-mate cause of defendants' actions. Plaintiff's injuries as alleged and proven were not unduly indirect or remote from defendants' trespass. Therefore, defendants' motion on this ground is denied." N.E. Women, at 477.
18 In the dicta of footnote 4 of the Opinion [A11], this Magistrate Judge referenced the case of Costlow v. Cusimano, 34 A.D.2d 196; 311 N.Y.S.2d 92 (1970). That case is inapplicable as it is a citation to the New York state court, which is applying the rules of procedure and body of law for that state court forum, rather than this Federal court forum, using the substantive law of the State of New York. Most importantly, the State of New York uses a form of fact pleading, superseded by the Federal Rules.
26
respects legally protected rights of the property owner, since if liability in restitution were limited to the price that would have been paid in a voluntary exchange, the calculating wrongdoer would encounter no incentive to bargain. By this reasoning, a benefit taken by a conscious wrongdoer is prop-erly valued at a price greater than the cost of the negotiated transaction that the defendant wrongly elected to bypass.
Id.; see also, Jacque v. Steenberg Homes, 209 Wis. 2d 605; 563 N.W.2d 154,
159-162 (1997). Certainly, federal notice pleading, with a general prayer
for relief, at the pleading stage, prior to discovery, and in light of the
fact that nominal damages are the subsumed within other damage claims (be-
ing only $1), and in light of the presumption of damages in trespass, the
Magistrate Judge erred to have dismissed the claim.
V. UNJUST ENRICHMENT.
The Magistrate Judge erred in ruling as a matter of law that i) the re-lationship between the parties must be construed as contractual, ii) that the Borings did not confer anything of value on Google and iii) that there is no independent cause of action for unjust enrichment be-ing subsumed by the other claims, particularly when the other claims were dismissed.
The Magistrate Judge ruled, “there was no relationship between the
parties that could be construed as contractual. It cannot be fairly said
that the Borings conferred anything of value upon Google.” [Opinion, at
9-10] For the reasons stated upon, the Magistrate Judge presupposes
against the Borings the very inference that the Borings require for their
claim.
Although it may be that a surviving trespass count would subsume the
substance of this claim, the trespass count must survive to do so; other-
wise unjust enrichment is appropriate claim.
Valuation in such cases resists any precise formula, and courts ex-ercise a wide discretion in fixing a price for the benefit in ques-tion—in other words, a measure of liability—that will correspond to the unjust enrichment of the defendant.
27
Restatement of Restitution 2d (Draft). The Borings properly satisfy the
standard, and the same have been pleaded: (1) benefits conferred on defen-
dant by plaintiff; (2) appreciation of such benefits by defendant; and (3)
acceptance and retention of such benefits under such circumstances that it
would be inequitable for defendant to retain the benefit without payment
of value. Lackner v. Glosser, 892 A. 2d 21, 34 (Pa. Super 2006).
VI. PUNITIVE DAMAGES
The Magistrate Judge erred in holding punitive damages are not avail-able as a matter of law even though pleaded and evidence is in the pos-session of defendant.
In addition to dismissing all counts, the Magistrate Judge also
ruled that the “allegations in the Amended Complaint fail to establish a
plausible claim of entitlement to punitive damages.” [Reconsideration, at
4; A20] However, with regard to punitive damages, the Pennsylvania
Supreme Court has delineated the clear purpose as a jury question:
In making its determination, the jury has the function of weighing the conduct of the tortfeasor against the amount of damages which would deter such future conduct.
Kirkbride v. Lisbon Contractors, 521 Pa. 97, at 103-4, 555 A.2d 800
(1998). Determining punitive damages is a jury function to determine af-
ter discovery, and the Borings are entitled to all inferences.
The determination that punitive damages are not warranted because
the Borings do not point to aggravating or outrageous conduct begs the
question. The Borings averred entry onto property without permission
(which is also crime), pursuant to a calculated scheme of approach,
substantiating a claim for punitive damages. The Borings are entitled
to discovery to prove that the acts are not mere “accidents” but are
reckless disregard of rights with a profit-motive as stated in the
28
Summary of the Case. The question must be reserved the jury because
discovery may yield information that bears on the question and the
initial inference. For example, discovery may show that a doctor was
intoxicated, or that Google’s policy was to consciously disregard
property rights.
Furthermore, the Pennsylvania Supreme Court has stated:
If the purpose of punitive damages is to punish a tortfeasor for outrageous conduct and to deter him or others from similar con-duct, then a requirement of proportionality defeats that purpose. ... In making its determination, the jury has the function of weighing the conduct of the tortfeasor against the amount of dam-ages which would deter such future conduct. In performing this duty, the jury must weigh the intended harm against the tortfea-sor's wealth. If we were to adopt the Appellee's theory, outra-geous conduct, which only by luck results in nominal damages, would not be deterred and the sole purpose of a punitive damage award would be frustrated. If the resulting punishment is rela-tively small when compared to the potential reward of his ac-tions, it might then be feasible for a tortfeasor to attempt the same outrageous conduct a second time. If the amount of punitive damages must bear a reasonable relationship to the injury suf-fered, then those damages probably would not serve as a deter-rent. It becomes clear that requiring punitive damages to be reasonably related to compensatory damages would not only usurp the jury's function of weighing the factors set forth in Section 908 of the Restatement (Second) of Torts, but would also prohibit victims of malicious conduct, who fortuitously were not harmed, from deterring future attacks.
Kirkbride v. Lisbon Contractors, 521 Pa. 97, at 103-4, 555 A.2d 800
(1998) (emphasis added). Moreover, the Supreme Court of Wisconsin also
eloquently stated the socio-philosophical policy behind punitive dam-
ages in a trespass count:
[Plaintiffs] argue that both the individual and society have signif-icant interests in deterring intentional trespass to land, regard-less of the lack of measurable harm that results. We agree with the [plaintiffs]....
[T]he United States Supreme Court has recognized that the private landowner's right to exclude others from his or her land is "one of the most essential sticks in the bundle of rights that are commonly characterized as property." Dolan v. City of Tigard, 512 U.S. 374, 384, 129 L. Ed. 2d 304, 114 S. Ct. 2309 (1994); (quoting Kaiser
29
Aetna v. United States, 444 U.S. 164, 176, 62 L. Ed. 2d 332, 100 S. Ct. 383 (1979)). Accord Nollan v. California Coastal Comm'n, 483 U.S. 825, 831, 97 L. Ed. 2d 677, 107 S. Ct. 3141 (1987) (quoting Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 433, 73 L. Ed. 2d 868, 102 S. Ct. 3164 (1982). ...
[B]ecause a legal right is involved, the law recognizes that actual harm occurs in every trespass. The action for intentional trespass to land is directed at vindication of the legal right. W. Page Kee-ton, Prosser and Keeton on Torts, § 13 (5th ed. 1984). The law in-fers some damage from every direct entry upon the land of another. Id. The law recognizes actual harm in every trespass to land whether or not compensatory damages are awarded. Id. Thus, in the case of intentional trespass to land, the nominal damage award represents the recognition that, although immeasurable in mere dollars, actual harm has occurred. . . .
Society has an interest in punishing and deterring intentional tres-passers beyond that of protecting the interests of the individual landowner. Society has an interest in preserving the integrity of the legal system. Private landowners should feel confident that wrongdoers who trespass upon their land will be appropriately pun-ished. When landowners have confidence in the legal system, they are less likely to resort to "self-help" remedies. In McWilliams, the court recognized the importance of "'preventing the practice of dueling, [by permitting] juries to punish insult by exemplary dam-ages.'" McWilliams, 3 Wis. at 381. Although dueling is rarely a mod-ern form of self-help, one can easily imagine a frustrated landowner taking the law into his or her own hands when faced with a brazen trespasser, like [defendant], who refuses to heed no trespass warn-ings....
If punitive damages are not allowed in a situation like this, what punishment will prohibit the intentional trespass to land? More-over, what is to stop [defendant] from concluding, in the future, that [it] is not more profitable than obeying the law? . . . An ap-propriate punitive damage award probably will.
In sum, as the court of appeals noted, the Barnard rule sends the wrong message to [defendant] and any others who contemplate tres-passing on the land of another. It implicitly tells them that they are free to go where they please, regardless of the landowner's wishes. As long as they cause no compensable harm, the only deter-rent intentional trespassers face is the nominal damage award of $1, the modern equivalent of Merest's halfpenny, and the possibility of a Class B forfeiture under Wis. Stat. § 943.13. We conclude that both the private landowner and society have much more than a nominal interest in excluding others from private land. Intentional tres-pass to land causes actual harm to the individual, regardless of whether that harm can be measured in mere dollars. Consequently, . . ., we hold that nominal damages may support a punitive damage award in an action for intentional trespass to land.
30
Jacque v. Steenberg Homes, 209 Wis. 2d 605; 563 N.W.2d 154, 159-162
(1997) (emphasis added).
VII. INJUNCTIVE RELIEF.
The Magistrate Judge erred in dismissing the claim for injunctive re-lief leaving the plaintiff without even a destruction/non-use claim.
Apart from the other claims, Google has possession of pictures of
the secluded Boring home, acquired with specific intent, by trespassing.
The Magistrate Judge dismissed the count on the basis that every other
count was dismissed, each of which was dismissed based upon the pleading
of damages. In effect, the Magistrate Judge ruling sends exactly the mes-
sage that underlies the entire dismissal of the entire case, including
that amendment would be futile: a prejudgment that what Google did is
legally acceptable and not actionable for any reason, not even to substan-
tiate a non-use and destruction order. Irrespective of each other count,
Google is permitted by the Magistrate Judge to continue to use the pic-
tures in the manner of its choosing, acquired while trespassing.
Although dueling is rarely a modern form of self-help, one can eas-ily imagine a frustrated landowner taking the law into his or her own hands when faced with a brazen trespasser, like [the defendant], who refuses to heed no trespass warnings....
Id.
31
CONCLUSION
As a free people, we have different opinions as to the meaning of
the law, and how words should be interpreted and applied. To freely and
to openly debate is our American heritage; even more, it is our duty.
Rightly so, as the broad spirit of the law, and what it is meant to do,
must be entrusted by the creator into a constrained choice of corporal
words. Our law is merely a body of words, and we are merely a body of
people. And, it is true that even our best body cannot perfectly encage
the expansive broadness of our best spirit.
It is also true that the new birth of any law or body constitution,
as used in the prospection of its life, cannot detail every future inten-
tion, cause and deed. In the end, and such as it may be for ourselves, it
is not what the body of words say here that is important, but, rather,
what they do here, in life, for us, the living. It is by the dedicated
resolution of this Federal court from which the body of our law is ani-
mated, endures or perishes from the earth. Indeed, in the contention of
differing opinions as to the meaning of words, and what they are meant to
do, this Federal court determines the last full measure of each word used
by the creator for any law or legal principle.
___________________________________
This case is about the meaning of private property. No less than
the check and balance on our inalienable rights, as Americans, to “life,
liberty [and] property,” and the “pursuit of happiness.” If “happiness”
is spoken today with the superficial insipidness of a smiley-face sticker,
it was not so for our American Forefathers: happiness was a gift of Divine
Providence, and inalienably grounded in the right to be left alone. In-
deed, freedom begins with the right to be left alone.
32
The moment the idea is admitted into society that property is not as sacred as the laws of God, and that there is not a force of law and public justice to protect it, anarchy and tyranny commence. If “Thou shall not covet” and “Thou shall not steal” were not command-ments of Heaven, they must be made inviolable precepts in every so-ciety before it can be civilized or made free.
John Adams.19
Google claims that its liberty permits it to intrude onto my private
property. I exclaim that my own liberty prevents it. I exclaim that my
property is nothing more than the resultant embodiment and product of my
time and labor.
If you take my property, you take my time. If you take my time
against my will, you take my liberty. If you take my liberty, I am your
prisoner. If you take my labor against my will without compensation, I am
your slave.
This appeal is made because Google and I have different opinions as
to the law and the meaning of the word “liberty,” and that is the rub.
But, contention in the meaning of “liberty” is not a new one for the Amer-
ican people:
The world has never had a good definition of the word “liberty,” and the American people, just now, are much in want of one. We all declare for liberty; but in using the same word we do not all mean the same thing. With some the word “liberty” may mean for each man to do as he pleases with himself, and the product of his labor; while with others, the same word may mean for some men to do as they please with other men, and the product of other men's labor.
Here are two, not only different, but incompatible things, called by the same name — liberty. And it follows that each of the things is, by the respective parties, called by two different and incompatible names — liberty and tyranny.
Abraham Lincoln.20
19 John Adams. A Defense of the American Constitution.20 Abraham Lincoln. Address in Baltimore, Maryland (April 18, 1864)
33
Can Americans find “happiness” with legally permitted intrusion on
their own private property, even past posted warnings? Can Americans love
their government for allowing profiteers the liberty to intrude on private
property, take the benefit for their own private luxuries and then not pay
compensation?
Is not the first act of any tyrant to destroy private property, or,
to create acceptance for the premise, even if the destruction is in de-
grees of seconds or hours, or inches or yards? And so much more insidi-
ous, if we are not vigilant with oil in our lanterns to watch for it when
it comes.
Without a broken fence to aver, or a direct monetary diminution, I am treaded upon, injured and without remedy.
Whether my property is a slave to serve unlimited commercial profi-teers or I am taxed as a slave to build a fence, it is of no matter: my property, my time and my money are committed to serve the inter-ests of another against their will.
It matters not if the lien is termed, “servitude,” “servient tene-
ment” or “slave.” It is immaterial; it is what it is. Such as it was for
our American heritage, when other intrusions were then at issue.
[D]ifferent men often see the same subject in different lights; and, therefore, I hope that it will not be thought disrespectful to those gentlemen, if, entertaining as I do opinions of a character very op-posite to theirs, I shall speak forth my sentiments freely and with-out reserve.
This is no time for ceremony...
For my own part I consider it as nothing less than a question of freedom or slavery; and in proportion to the magnitude of the sub-ject ought to be the freedom of the debate. It is only in this way that we can hope to arrive at truth, and fulfill the great responsi-bility which we hold to God and our country. Should I keep back my opinions at such a time, through fear of giving offense, I should consider myself as guilty of treason towards my country, and of an act of disloyalty towards the majesty of heaven, which I revere above all earthly kings.
34
[I]t is natural to man to indulge in the illusions of hope. We are apt to shut our eyes against a painful truth, and listen to the song of that siren, till she transforms us into beasts. Is this the part of wise men, engaged in a great and arduous struggle for liberty? Are we disposed to be of the number of those who, having eyes, see not, and having ears, hear not, the things which so nearly concern their temporal salvation?
... I have but one lamp by which my feet are guided; and that is the lamp of experience. I know of no way of judging of the future but by the past. ...
They tell us, sir, that we are weak — unable to cope with so formi-dable an adversary. But when shall we be stronger? Will it be the next week, or the next year? Will it be when we are totally dis-armed, and when a British guard shall be stationed in every house? ...
Sir, we are not weak. ... The battle, sir, is not to the strong alone; it is to the vigilant, the active, the brave. ... There is no retreat but in submission and slavery! Our chains are forged! Their clanking may be heard on the plains of Boston! The war is in-evitable — and let it come! I repeat it, sir, let it come! ...
Is life so dear, or peace so sweet, as to be purchased at the price of chains and slavery? Forbid it, Almighty God! I know not what course others may take; but as for me, give me liberty, or give me death!
Patrick Henry.21
The information revolution is here and it contends against our free-
doms. And it matters not to me whether the intruder on my land or sta-
tioned in my house is King George or Google.
Never before has a commercial enterprise had the power to perva-
sively traverse the physical earth, the power to record and to index the
acts of pervasion, and the power to pervasively publish the results. Do
we not recognize Orwell’s Big Brother, even as he sits in our driveway,
1,000 feet from the public road, packed with six cameras taking 360° pho-
tographs on our driveway, at our home window? Experience teaches to check
and balance.
21 March 23, 1775. “Slavery” is used in the formative political-philo-sophical context as the antithesis to “freedom”; such as Empty/Full on a gauge: as one lessens the other gains.
35
If the Magistrate Judge is correct, this case will be remembered as
the case that allows Google to tread upon me and my land. If the Magis-
trate Judge is correct, there is no difference, in the liberty to intrude,
even if the Google’s car was painted bloody red with a hammer and sickle,
painted with a Nazi flag, or painted with the Iraqi flag of black and red
horizontal stripes. There is no difference in point of law, if Google,
with all of its technology and information, is acquired by an Iranian or
Iraqi company, or an Arabian king. These merely expose the subtlety.
And, what is the natural and logical next step, if we should divine
it. The rule of law, the new principles of imposition and creep of per-
missions to use my land have no logical end or definition. The ruling be-
low is a foot preventing the closing of the door on my rights, and, mark
these words, the permissions will creep. Google gets its bite, so does
everyone else. Each is entitled to equal protection of the law. Lady
Liberty is bled to death by the pinpricks of trespass.
For those who do not know how to count, they lose their money; for those who do not know their rights, they lose their liberties.
Our Forefathers did not intend to replace the intrusions of a monar-
chy with the intrusions of a corporate oligarchy or corporate aristocracy.
In an age of needed responsibility, Google must be held accountable for
its choices. The Borings seek their day in court. Google is not above
the law, but that begs the question.
____________________________________________
The Borings seek reinstatement of the Amended Complaint, Counts I,
II, III, IV and V, with a directive to Google to answer in due course.
36
Respectfully submitted,
Date: September 20, 2023
/s/Gregg R. Zegarelli/Gregg R. ZegarelliPA I.D. #52717412.765.0401
Dennis M. MoskalDennis M. Moskal, Esq.PA I.D. #80106412.765.0405
Counsel for AppellantsAaron and Christine Boring
Z E G A R E L L ITechnology & Entrepreneurial Ventures Law Group, P.C.Allegheny Building, 12th FloorPittsburgh, PA 15219-1616412.765.0400
37
ATTORNEY CERTIFICATE OF BAR MEMBERSHIP
I, Gregg Zegarelli, certify on the date specified below, that I am admit-
ted as an attorney of the United States Court of Appeals for the Third
Circuit and that I am a member of the bar in good standing.
Date: September 20, 2023
/s/Gregg R. Zegarelli/Gregg R. ZegarelliPA I.D. #52717412.765.0401
Counsel for AppellantsAaron and Christine Boring
Z E G A R E L L ITechnology & Entrepreneurial Ventures Law Group, P.C.Allegheny Building, 12th FloorPittsburgh, PA 15219-1616412.765.0400
I, Dennis M. Moskal, certify on the date specified below, that I am admit-
ted as an attorney of the United States Court of Appeals for the Third
Circuit and that I am a member of the bar in good standing.
Date: September 20, 2023
/s/Dennis M. Moskal/Dennis M. Moskal, Esq.PA I.D. #80106412.765.0405
Counsel for AppellantsAaron and Christine Boring
Z E G A R E L L ITechnology & Entrepreneurial Ventures Law Group, P.C.Allegheny Building, 12th FloorPittsburgh, PA 15219-1616412.765.0400
38
